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Full text of "Singh v. Domglas Limited, Board of Inquiry, December 1980 BOI 123"

IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970, CHAPTER 318, AS AMENDED, 

AND IN THE MATTER OF the complaint of Mr. Avtar 
Singh against Domglas Limited 



BOARD OF INQUIRY 
Robert W. Kerr 



Appearances; 

S. L. Goldenberg, Esq. - Counsel for the Ontario Human 

Rights Commission and the 
Complainant, Mr. Avtar Singh 

Counsel for the Respondent, 
Domglas Limited 

May 28, 29, 30, September 18, 
October 30, 31, November 6, and 
December 8, 1980 

MacDonald Block, Queen's Park, 
Toronto, Ontario (May 28-Oct. 31) , 
and 10 Wellesley Street East, 
Toronto, Ontario (Nov. 6-Dec. 8) 



ONTARIO 

MINISTRY OF LABOUR 

JAN 2 1981 

HUMAN RIGHTS 
COMMISSION 



D. K. Gray, Esq. 



Dates of Hearing 



Place of Hearing 



DECISION 

The complaint in this case was filed by Mr. Avtar Singh on February 23, 
1978, following his dismissal from employment by Domglas Ltd. on February 2, 
1978. This Board of Inquiry was appointed by the Honorable Robert Elgee, 
Minister of Labour, on July 6, 1979 to hear the complaint. The Board sought 
and received the cooperation of the parties and their counsel in setting the 
hearing for a mutually convenient time, but regretably a series of circumstances 
combined with this cooperative approach to produce an extremely protracted 
timespan between the date of the Board's appointment, the commencement of 
the hearing on May 28, 1980, and the final conclusion of the hearing on 
December 8, 1980. The hearing was held in Toronto over 8 days. May 28, 29, 
30, September 18, October 30, 31, November 6 and December 8. 

Mr. Singh is of East Indian origin. His complaint alleged violations 
of sections 4(1) (b) and 4(1) (g) of The Ontario Human Rights Code, R.S.O. 1970, 
c. 318, as amended, on the grounds of race, creed, nationality, ancestry or 
place of origin. While the nature of his complaint of dismissal contrary to 
section 4(1) (b) of the Code was apparent on the complaint form, the exact 
nature of his complaint as to discriminatory terms and conditions of employ- 
ment only became clear dxaring the complainant's testimony before the Board. 
Specifically Mr. Singh was con^laining that he had been subjected to racial 
slurs in the workplace and that management personnel had turned a deaf ear 
to his requests that it take steps to eliminate this condition. 

Before I deal with the merits of this case, there are two issues of 
a preliminary nature which I want to deal with because they were extensively 
argued before me. While I have already given an oral ruling on one of these 
matters to the parties during the hearing, the matter is sufficiently 
important that I think my decision should be recorded here. On the other 



2 

matter, I reserved my decision until the end of the case. 

THE EFFECT OF A PRIOR ARBITRATION 

The first preliminary issue was raised at the beginning of the hearing 
as an objection to my jurisdiction on the basis that the matter was res judicata. 
The complainant's employment with the respondent at the time of his dismissal 
was covered by a collective agreement with the United Glass and Ceramic Workers 
of North America, Local 260, (Fourth Collective Agreement, December 31, 1977 
to December 30, 1979) . This Agreement contained a fairly standard clause 
relating to just cause for discharge (Clause 4.01) and a fairly standard 
ant i -discrimination clause (Clause 5.01). A grievance against the complainant's 
dismissal was filed under the Agreement on February 3, 1978. It was taken to 
arbitration with a hearing on October 13, 1978 before Messrs. Kevin M. Burkett 
(Chairman), W. J. McNaughton (Company Nominee) and Ralph Currie (Union 
Nominee) . In those proceedings, the respondent claimed there was just cause 
for the complainant's dismissal in that he had deliberately struck and in- 
jured another eirployee in a work-related incident. In an award dated December 
18, 1978, the arbitration board unanimously concluded that there had been 
just cause for discipline, but by a majority reduced the penalty to an 
eight week suspension in exercise of their power under section 37(8) of The 
Labour Relations Act, R.S.O. i970, c. 232, as amended. 

After hearing lengthy argument, I concluded that in these circumstances 
res judicata was an evidentiary issue, rather than a jurisdictional one. 
While normally this is an issue which it is expedient to deal with on a 
preliminary motion, I concluded that I should not do so in this case for 
several reasons. First, since there did not appear to be a prior ruling 
on the effect of a prior arbitration award on proceedings before a human 



3 

rights tribunal in Ontario or Canada, the issue was one of first impression 
and should, therefore, only be ruled upon after full consideration, and in 
light of the entire case. Secondly, since the arbitration award did not on 
its face deal with the issue of discrimination, I would not be in a position 
to discharge the obligation in section 14c (a) of the Code to decide whether 
there was a contravention of the Act unless I heard further evidence. Thirdly, 
since the complainant was ready to proceed with his evidence, and the matter 
had already been long delayed, it would be more convenient to proceed with 
the taking of evidence, rather than adjourn pending a decision on the pre- 
liminary motion. While the third consideration ceased to operate at the 
conclusion of the first three days of the hearing, I decided that, particularly 
in light of the first consideration, I should continue to reserve my decision 
until the end of the case. 

Mr. Gray contended that the arbitration award should be regarded as a 
final and complete resolution of the matter in the strict sense of res judicata. 
Mr. Goldenberg, on the other hand, contended that res judicata did not apply 
because the rights were different since the Code, and not the Agreement, was 
involved. In addition the parties, other than the respondent, were different 
since the Commission and the complainant were the other parties before me, 
while the union was the other .party before the arbitration board. Mr. 
Goldenberg suggested that I should adopt the approach of the United States 
Supreme Court in Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974). In 
that case it was held that, because of the important statutory mandate of 
the courts in dealing with employment discrimination, prior arbitration awards 
should be treated only as some evidence in human rights proceedings before 
the coiirts. They should in no way limit the obligation of the courts to 



4 

conduct a trial de novo on the merits of the case. 

My conclusion is that proper treatment of the arbitration award in 
cases such as the one before me falls between these two extremes. Under 
section 37(9) of The Labour Relations Act, an arbitration award is binding 
upon the employer and the employees affected. Unless, therefore, the award 
is set aside by the covirts, the employee cannot make a claim against the 
employer which is contrary to the award. 

While the Commission is another party not bound by the award in this 
fashion, the Commission's status in the matter derives from the complaint 
under section 13(1) of the Code. 

If the party filing the complaint has no basis for the complaint because 
of an arbitration award, then I do not see how the presence of the Commission 
as a party can add anything to the matter. The Commission has, of course, 
the option of initiating a complaint under section 13(3) of the Code, and 
it should do so if it does not wish to be bound by the rights between particular 
complainants and respondents. 

Even if I am wrong in holding that the Commission is bound in this way 
by the origin of the complaint, the courts of Ontario have recognized a 
broader principle that one party who identifies its interest with that of 
another, as the Commission does by proceeding on the complaint of the 
complainant, is bound by an estoppel as to issues already adjudicated between 
that other person and parties opposed in interest: Nigro v. Agnew-Surpass 
Shoe Stores et al. (1977), 18 O.R. (2d) 215 (H.C.), affd., (1977), 18 O.R. 
714 (C.A.). I'fiiether the Commission is bound by the award for the purposes 
of a complaint under the Code, or merely estopped, the effect is the same. 

This, however, does not dispose of the matter for the rights created 



5 

by the Code may still be separate from those decided by the award. The rights 
dealt with by an arbitration award arise under a cpllective agreement. The 
rights before a huuman rights tribunal, on the other hand, are created by 
statute. 

I think it is appropriate to take certain policy considerations into 
mind in deciding whether these rights should in law be treated as distinct. 
To decide that they are separate on a purely legalistic basis would create 
a potential problem. Since rights under an agreement and under the Code 
are adjudicated by separate systems, that is, by arbitration under the 
agreement and by a board of inquiry under the Code, it would be conceivable 
that two conflicting results might be produced in a single situation. It is 
undoubtedly more conducive to respect of our overall legal system if such 
a situation is avoided. 

In the United States, where very limited weight is given to arbitral 
decisions in human rights cases, labour arbitration is a wholly voluntary 
matter. In Ontario, however, parties to a collective agreement are compelled 
by law to establish an arbitration procedure. (In most other provinces, the 
parties are virtually compelled to an arbitration procedure since they 
must adopt it in the absence of a satisfactory alternative.) This clearly 
places our arbitration boards in a position deserving greater respect than 
such boards in the United States. 

On the other hand, under the Code in Ontario, the parties to a hearing 
before a board of inquiry are entitled to an appeal from the decision of the 
Board to the courts. While the decision of an arbitration board may be 
taken to the courts as well, the courts can only review the decision on a 
more limited basis than is involved in an appeal. 



6 

If a board of inquiry were to be bound by the decision of an arbitration board 
because the rights involved are treated as the same, then either the right 
of the parties to appeal the decision would be effectively nullified since 
the arbitration award is not appealable or the arbitration award would 
effectively be made appealable through the board of inquiry's decision con- 
trary to the normal immunity of such an award from appeal. If the rights 
are treated as different, this dilemna does not arise. 

Another consideration is the general policy of avoiding excessive legal 
proceedings which underlies the rules of res judicata and issue estoppel. 
It has been established that discrimination can vitiate a claim of cause 
for dismissal: MacDonald v. 283076 Ontario Inc. (1979), 26 O.R. (2d) 1 (C.A.). 
Since a board of inquiry has no jurisdiction to enforce rights other than 
those arising from unlawful discrimination, it would appear that an arbitration 
board is in a better position to dispose of an entire dispute than is a 
board of inquiry. This argues in favour of giving the widest possible weight 
to an arbitral award in order to encourage the full litigation of such issues 
before arbitrators, and to avoid the less complete adjudication of a board 
of inquiry. 

In my view the appropriate resolution to these conflicting considerations 
lies in the American approach, .not in the case of human rights matters, but 
in the case of other labour relations matters. The human rights precedent 
in the United States is not appropriate under Ontario law because the human 
rights tribunals (the courts) enjoy a higher status and arbitration a lower 
status respectively than boards of inquiry and arbitration under Ontario law. 
Relatively speaking, however, in the United States system the comparative 
positions of the National Labour Relations Board and arbitration are very 

V 



7 

similar to the comparative positions of boards of inquiry under the Code 
and arbitration. Both the National Labour Relations Board and boards of 
inquiry are tribunals established by the state with obligations to enforce 
legal rights in a specialized area subject to regular access to the courts 
to review their decisions. Arbitration in both systems is a legally favoured 
(albeit entirely voluntary in the American system)^ privately established 
tribunal which is relatively immune from review by the courts. While the 
addition of section 37a to The Labour Relations Act has increased the role 
of the state in the establishment of arbitration boards in Ontario, in my 
view this merely increases the respect which other state-established tribunals 
owe to arbitral decisions and makes the approach set out below even more 
appropriate. 

The approach of the National Labour Relations Board when a case before 
it has already been subject to arbitration was established in Spielberg 
Manufacturing Company , 112 N.L.R.B. 1080 (1955) , and received perhaps its 
most thorough exposition in Col Iyer Insulated Vlire , 192 N.L.R.B. 837 (1971). 
It was endorsed by the Supreme Court in Carey v. Westinghouse Electric 
Corporation , 375 U.S. 261, at 270-271 (1964). Under this approach, the Board 
may, in its discretion, defer to an arbitral award if it is satisfied that 
the arbitration procedure was -fair and regular, all parties are bound, and 
the decision is not clearly repugnant to the purposes and policies of the 
statute. In relation to the last factor, one concern is whether or not the 
award has actually dealt with the principal issues raised by the statute. 
If it does, the Board is inclined to defer: National Radio Co. , 205 N.L.R.B. 1179 
(1973). 

Such an approach accommodates pxablic interest in enforcement of the statute 



8 

with appropriate respect for the private relationship of the parties through 
the exercise of the tribunal's discretion. If statutory rights have been 
ignored, the tribunal is free to intervene. On the other hand, the tribunal 
can avoid unnecessary relitigation of issues by reviewing on a preliminary 
motion whether it will defer to the arbitral award. While this does not 
prevent the complainant-grievant from commencing multiple proceedings, there 
is a substantial disadvantage in doing so. One only has a real chance at 
two hearings by splitting one's case, that is, taking proceedings under the 
Code with respect to the discrimination issue and under the collective 
agreement with respect to other issues. To split one's case in this 
manner is to weaken it and increase the risk of losing in both forums. 

While the control of the union over proceedings under the collective 
agreement may undermine the ability of the grievant to obtain a hearing of 
the discrimination issues through arbitration, the individual's opportunity 
to get a full hearing in that process is protected by the duty of fair 
representation under section 60 of The Labour Relations Act and the ultimate 
right of individuals directly affected by an arbitration award to appear on 
their own behalf: Koogendoorn v. Greening Metal Products S Screening Equip- 
ment Co. , [1968] S.C.R. 30. These are better protections than absolute 
refusal by boards of inquiry to respect arbitration awards. Indeed under 
the approach suggested the board of inquiry would not respect the award if 
it concluded that the grievant did not have a fair hearing. It may be noted 
that this also accords with the rule of res judicata which does not apply in 
a case where the party presently claiming contrary rights was represented by 
another party in the previous proceedings and such representation was not 
fair: Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), at 375. 



9 

Since this approach recognizes that the rights being enforced in 
arbitration are legally separate from those under the statute, the dilemna 
created by the different relationship between the courts on the one hand and 
the arbitrator or the board of inquiry on the other is avoided. It is only 
the statutory rights, not the rights under the collective agreement, that 
are subject to ordinary appeal to the courts. While the possibility of 
practically conflicting results does occur, the object of deferral to the 
arbitral ruling is to limit such conflicts to cases where the arbitration 
award is unacceptable in light of the statutory rights involved. 

On the face of the arbitration award in this case, there was no 
consideration of the question of discrimination which is the only issue under 
the Code. In such a case, it is not appropriate for a board of inquiry to 
give deference to the arbitration award with respect to the statutory issues. 

THE POWER OF A BOARD OF INQUIRY TO TAKE A VIEW 

Mr. Goldenberg requested an order for the Board of Inquiry to take a 
view of the premises where the incident giving rise to the complainant's 
dismissal took place. The purpose of the view was to ascertain whether the 
conclusions drawn by management personnel concerning these events were 
reasonaible. If these conclusions were not reasonable, this would support 
an inference of the alternative explanation that the management personnel 
acted discriminatorily. Mr. Gray objected that the Board had no authority 
to take a view since the express authority to inspect premises which boards 
of inquiry enjoyed by reference to section 30 of The Labour Relations Act 
had been taken away upon the enactment of The Statutory Pov;ers Procedure 
Act, 1971, S.O. 1971, c. 47. Another matter in dispute, in the event 
a view was taken, was whether the view was evidence itself, or was simply 



) 

10 

an aid to the understanding of other evidence according to the rule in 
Chambers v. Murphy , [1953] 2 D.L.R. 705 (Ont. C.A.). 

As I ruled verbally, I do not think the elimination from the Code of 
the former reference to section 30 of The Labour Relations Act resolves the 
issue- The power to inspect premises related to an investigatory role which 
tribunals like boards of inquiry under the Code were once conceived as having. 
Boards vmder the Code have evolved into a fully adjudicatory role and the 
enactment of The Statutory Powers Procedure Act was the final step in this 
evolution. I cannot believe that the final repeal of investigatory powers 
was intended as any implied restriction on the adjudicatory powers of a board. 

That leaves, however, the question of whether a board has any power 
under either the Code or The Statutory Powers Procedure Act to take a view. 
The only relevant provisions are in sections 12(1) and 15(1) of the latter 
Act. These deal with the powers of a board to compel the production of 
evidence and to receive evidence. The power of a board to compel the pro- 
duction of evidence must be read in conjunction with Form 1 which was appended 
to the Act at its passage. It is clear that this provision contemplates, 
in the case of physical evidence, only such objects as witnesses can bring 
with them to a hearing. In the light of this provision, and in the absence 
of any other power to compel production of evidence, I concluded that I had 
no power to compel the taking of a view. 

The term used in section 15(1) to describe physical evidence that may 
be received is the same as the term used in section 12(1) to describe 
physical evidence that may be compeled, that is, "thing". This gives rise 
to an implication that the scope of both provisions is the same. However, 
"thing" is a very general term. Giving a remedial construction to the 



t 



11 

statute, I cannot believe that it was intended to deny to tribunals the power 
to take a view where such is desired jointly by the parties. On the other 
hand, in light of the fact that views are commonly conducted upon mutual 
consent, and in light of the practical complications involved in taking a 
view without such consent, I find nothing anomalous in the conclusion that 
a view can be taken with consent, but not otherwise. Moreover, I think a 
board might properly draw inferences from the refusal of a party to consent 
to a view if this was necessary to offset the inability of the other party 
to obtain production of evidence because of such refusal. This would seem 
to fall within the range of the general principle that a party bears the 
burden of proof with respect to evidence within its control . 

With respect to the evidentiary effect of a view, if taken, it is my 
view that under the express terms of section 15(1) of The Statutory Powers 
Procedure Act, it is evidence. 

Even if I had the power to compel a view, I would think it is discretionary, 
at least where other evidence is available as it was here. In this case, 
while I would have taken a view with consent of the parties, I would not 
have exercised any discretion to order a view without consent. In light of 
the other evidence available, I think it unlikely that a view vrould have 
added much in the way of clarification. Any value was outweighed by the 
inconvenience that would have been involved in taking a view over objection. 

No submissions were made to me as to any adverse inferences to be 
drawn from the refusal of the respondent to consent to a view. In light 
of the assistance provided by respondent who supplied photographs and a 
blueprint of the site, I find no basis for drawing any such inferences. 



12 

THE ISSUE OF DISCRIMINATION 

Before I deal with the main substance of the complaint of Mr. Singh, 
it seems convenient to deal with a body of evidence that was tendered to 
show that the respondent has engaged in recent years in discriminatory 
hiring practices. Mr. Goldenberg siabmitted that a showing of such practices 
could give rise to an inference that discrimination was also the most likely 
explanation of the treatment of the complainant. 

Considering the difficulty inherent in proving discrimination, I concluded 
that evidence of this nature was relevant and admissible. However, since it 
is not directly relevant to the actual facts of the complaint, it must be 
treated with a great deal of caution. While the general burden of proof 
in a complaint under the Code is on the balance of probabilities, I think 
a board must be persuaded on more than the balance of probabilities that 
one form of discrimination occxarred before it can conclude that on the 
balance of probabilities another rather different form of discrimination 
occurred. In light of this, I refused to admit several items of evidence 
tendered by Mr. Goldenberg because they were the least reliable form of 
hearsay, that is, anecdotes which the witnesses testifying had little or 
no interest in validating for their own purposes. Because of the virtual 
lack of any way of testing the credibility of such evidence, I could not 
have given it any weight such as would assist in supporting a finding of 
discriminatory hiring practices sufficient to draw the further inference 
that the respondent was discriminatory toward existing employees. In 
view of the highly prejudicial nature of this evidence, therefore, I 
declined to admit it. 

The evidence which I did allow with respect to hiring practices 



c 



0' 



13 

consisted of an analysis of the respondent's seniority list to show the 
ratio of East Indians among those employees originally hired in each calendar 
year, and some personal experiences of applicants of East Indian origin. 
The problem with all of this evidence was that it was highly inconclusive. 
There was no real standard against which to assess v/hether the treatment 
of East Indians was discriminatory. Even if the numbers on the current 
seniority list are representative of original hires, which is not necessarily 
the case, it is impossible to determine if the number hired is prima facie 
discriminatory or entirely reasonable unless one knows the ratio of applicants, 
or of potential applicants in the work force, or of some other relevant 
control group. The experiences of individual applicants are of little 
assistance unless either the parallel experiences of other applicants are 
shown in the same manner or the individual cases are themselves further 
investigated to test whether there may be other explanations. 

If the complaint before me had been one involving discriminatory hiring 
practices, I am doubtful that a finding of discrimination could have been 
supported by the evidence before me on this issue. It was certainly insuf- 
ficient to support an inference that the respondent probably engaged in 
other forms of discrimination. 

With respect to the complainant's own case, the evidence is rather 
more difficult to assess. In assessing it, I propose to deal in turn with 
each of the two branches of the complaint. 

With respect to the complainant's dismissal, he was the third employee 
dismissed within a short period of time for an alleged physical assault upon 
another employee in a work related incident. However, his was the first 
case of such a dismissal of an employee with a relatively clean previous 



14 

record. Prior to these three dismissals, the respondent had merely suspended 
employees in such cases. The two prior dismissals arose out of a single 
incident and it appeared that management personnel had engaged in a great 
deal of soul-searching prior to those dismissals. In the case of the 
complainant, however, the decision to dismiss was made rather quickly. 

A great deal of the evidence adduced by the Commission was directed to 
raising doubts as to whether the alleged assult could actually have occurred. 
From this evidence, the Board was asked to conclude that the action of manage- 
ment personnel in the matter could not have been based on any reasonable 
belief that the assault had occurred, and that inferentially the real reason 
was the complainant's ethnic background- The complainant seems firmly to 
believe that he did not commit the alleged assault, and some of the evidence 
did indeed raise doubts as to whether the assault did in fact occur. For 
example, the blow allegedly struck by the complainant was said to have 
involved a striking of another employee on the leg by a metal pipe which 
one might expect to have been somewhat oily, even at the dry end. Medical 
evidence indicated that the injury which the other employee clearly suffered 
would have been almost immediately crippling. However, in an examination 
of the other employee's pants shortly after the blow was allegedly struck, ' 
a supervisor did not observe any mark, and the other employee was observed 
for approximately an hour after the incident without any sign of being 
crippled . 

From the evidence of the complainant and the psychiatric evidence of 
Dr. Bulter, it appeared that it might be helpful to the complainant if a 
decision were reached which either vindicated the complainant's own belief 
that he never committed the alleged assault or else persuaded him that he 



c 



c 



15 

had committed it. Regretfully, this Board cannot provide such a decision- 
It may be that the other employee was injured in some other way and the 
complainant was indeed wronged. It may be, on the other hand, that the 
complainant suffered a temporary blackout and believes that he never struck 
the other employee because he was not conscious of doing so. 

The effect of the arbitration award with respect to the alleged assault 
would have to be taken into account if this issue were relevant to the decision 
of this Board, but it is not. I am only concerned with whether, because he 
was East Indian, the complainant was treated differently than another 
employee would have been in the same circumstances, that is, differently 
than an employee who was accused, whether rightly or wrongly, by another 
employee of having committed a physical assault. If this accusation was 
in fact false, that was the other employee's doing, and not the doing of 
the respondent. If he did not commit the alleged assault, the complainant 
has no doubt suffered an injustice at the hands of the arbitration board 
which heard his grievance. The possibility that arbitrators can make 
mistakes in one of the weaknesses employees have to live with in the recog- 
nition that this system is better than one in which it does not matter 
whether an employee has been dismissed for good reason since the employer 
is entitled to dismiss for no reason at all. In "any event, the human race 
has yet to create a system which ensures perfect justice - 

In so far as the complainant was dismissed for a first incident of 
assault with a relatively clean prior record and with a minimum of study 
of the policy implications by management personnel, his treatment was 
different from the closest comparisons available, that is, the cases of 
others who actually committed physical assaults. The respondent, however. 



16 

explained this difference on the basis that it had just adopted a more 
stringent policy with respect to such cases in an effort to stop acts of 
violence in the plant. Under this policy, prior records were not relevant, 
so that it was only coincidental that those previously dismissed under the 
policy had poor records. The reasons for the extensive review of the first 
two cases of dismissal were that this was the first occasion on which the 
respondent had actually to decide whether the threat of dismissal should be 
implemented in practice, and that one of those dismissed was a management 
level employee, creating special problems as to the implications of dismissal 
upon morale. The respondent claimed that the union had been apprised of 
this policy and, Mr. Joseph, the President of the Union testified to con- 
firm this. 

There are two apparent deficiencies in the evidence concerning this 
policy tendered by the respondent. First, there was no documentary evidence 
of this policy. While no evidence was led as to whether it would be 
normal practice for the respondent to deal with such matters verbally, it 
did appear that there was a normal complement of bulletin boards in the 
plant. Indeed Mr. Joseph testified that the policy was posted on the 
bulletin board. This makes the lack of a written record appear somewhat 
strange. Secondly, although the respondent claimed that the first two 
dismissals were in implementation of this policy, company documentation 
in relation to these dismissals which was filed in evidence contained no 
mention of such a policy. Again, if such a policy existed, it seems 
somewhat strange that it was not mentioned. 

I am compelled to the conclusion that the respondent had not, prior 
to the complainant's dismissal, formulated a firm policy of dismissal as 



17 

the automatic penalty for any act of physical violence on the job. On the 
other hand, I am not inclined to altogether discredit the testimony of Mr. 
Joseph and Mr. Bergeron, the respondent's other witness, concerning such a 
policy. I conclude that such a policy was indeed threatened by the 
respondent and discussed with the union, but that management personnel had 
still not firmly settled upon it. To the extent that Mr. Bergeron suggested 
otherwise, I think that this was an interpretation of events induced in the 
intervening period by the pressure of having to explain actions which occurred 
some three years ago. 

The fact that the respondent had no firm policy on dismissal when it 
dismissed the complainant goes directly only to the issue of cause for 
dismissal. That was a matter for the arbitration process. It is of concern 
to me only to the extent that it may justify an inference that the real reason 
for the dismissal of the complainant was not the alleged assault, but the fact 
that he was East Indian. 

It is a perfectly human trait to become more convinced of the rightness 
of one's actions with the passage of time, particularly where, as in this 
case, one is called upon to defend those actions on more than one occasion. 
Some slight exaggeration of the justification of one's actions in these cir- 
cumstances does not mean that the justification lacks credibility once the 
exaggeration has been elindnated. I conclude that the principle reason for 
the respondent's action in dismissing the complainant was a developing policy 
of dismissal for actions of physical violence such as that alleged against 
the complainant. 

This may have been unfair to the complainant, but it was not a violation 
of the Code unless the complainant's East Indian origins were also a factor. 



e 







18 

I am persuaded that they were not for two reasons. First, two other employees 
of different origins had been dismissed in the most recent similar incident. 
Secondly, during the incident giving rise to the complainant's dismissal, the 
other employee provoked the complainant with racial slurs and I am satisfied 
that the company imposed some discipline as a result. While Mr. Goldenberg 
raised questions as to the adequacy of such discipline and the promptness 
with which it was imposed, it appears that such discipline was unprecedented 
for the respondent. In light of this I think it was sufficiently prompt and 
any imposition of discipline was indicative of the good faith of the respondent. 

Although the decision to dismiss the complainant was made with some 
speed, I do not find this to be evidence of discrimination. A reasonable 
investigation was conducted prior to the decision. The information obtained 
from this investigation was a sufficient basis on which management personnel 
could reasonably have concluded that the alleged physical assault had taken 
place. Having so concluded, they were within their rights to take action 
and leave it to the grievance and arbitration procedure to finally determine 
whether tb^t decision was correct. Management personnel did continue their 
investigation after the dismissal, but this would be the normal course of 
events in preparation for proceedings under the collective agreement. The 
worst that can be said of the . respondent ' s officials is that they proceeded 
with a lack of sensitivity to the possible perception of the complainant that 
he was the victim of discrimination. Such sensitivity, however, would have 
involved special treatment of the complainant in consideration of his ethnic 
background. The Code does not require that such special treatment be accorded. 

In s\immiary, I find no violation of section 4(1) (b) of the Code is in 
relation to the dismissal. 



19 

With respect to the racial abuse which the complainant claimed to have 
suffered from his fellow employees, I am satisfied that such abuse did in 
fact occtir. The evidence of Mr. Joseph that shop talk frequently takes this 
form confirms the complainant's own testimony. The area of dispute is whether 
or not the respondent is legally responsible for this abuse. 

It was recognized in Simms and Ford Motor Company of Canada Limited , 
Board of Inquiry (H, Kreever) , June 4, 1970, that racial abuse of one 
employee by another can constitute a discriminatory condition of employment. 
The employer has greater responsibility for such conduct when it is carried 
on by supervisory personnel, but may also be responsible where ordinary 
employees are involved as well. The extent of the employer's responsibility 
depends on whether the employer has knowledge that such conduct is making 
eirployees feel uncomfortable and whether the employer takes appropriate steps 
to halt such conduct when it becomes aware of it. 

To the principles established by the Simms case, I would add that racial 
abuse is inherently discriminatory because it singles out persons on the 
basis of their race or ethnic origin. Thus, it is no defense that such abuse 
is indiscriminately being carried out at the same time in relation to employees 
of many different backgrounds. 

The racial abuse to which the complainant was subjected appears to have 
involved ordinary employees, and not supervisory employees. The evidence 
is in considerable conflict as to whether the respondent was aware of this 
abuse. The complainant testified that he had complained concerning the 
conduct of some of his fellow employees on several occasions and had applied 
for a change of shift on the grounds of these complaints. The basis of 
his complaints, according to his testimony, was drunkness, smoking of marijuana. 



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and racial abuse. The respondent's witnesses confirmed that Mr. Singh had 
made complaints and asked for a shift change, but only in so far as those 
complaints involved drunkness and smoking of marijuana. There were also other 
conflicts in the testimony, for example, as to whether the complainant was 
willing to disclose the names of the employees in question. Although these 
conflicts are not relevant to the issues before me, they are troiablesome 
because they suggest that either one body of testimony or the other was not 
credible. 

In the final analysis, I have concluded that the complainant's concern 
over racial abuse resulted primarily from the incident which led to his dis- 
missal. The intensity of this concern, in my opinion, coloured his recollection 
of earlier events. Concern over racial abuse may well have been on his 
mind at the time of his complaints over the conduct of other employees. 
However, I am satisfied that he did not bring home this concern to management 
personnel at that time. 

There is no other evidence before me that the respondent's management 
personnel knew that racial abuse was a problem within the plant prior to the 
incident leading to the complainant's dismissal- They may have been aware 
that such abuse was part of shop talk within the plant, but I do not think 
this sort of knowledge is sufficient to make them legally reisponsible for 
a violation of section 4(1) (g) of the Code. While shop talk of this nature 
is indeed regretable, in order for the employer to become responsible, there 
must be something to show that it has become more than personal interplay 
between the employees. Where management personnel are not directly involved, 
it must be brought home to the employer that the situation has become 
recognized as a condition of the employment situation, and not merely 
as a personal matter between employees. 



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I conclude, therefore, that there was no violation of section 4(1) (g) 
prior to the complainant's dismissal. By disciplining the other employee 
who engaged in racial abuse of the complainant at the time of that incident, 
the respondent also acted appropriately to discharge its responsibility 
to eliminate racial abuse on becoming aware that it had become a condition 
of the employment situation. 

Although I find that no violation of the Code occurred, it is apparent 
that at least some of the respondent ' s employees have perceived these events 
as discrimination based on Mr. Singh's ethnic background. This Board has 
no way of knowing how widespread such perception may be. It could be in the 
respondent's own interest to institute some sort of human relations program, 
particularly since the respondent could hardly rely on lack of relevant 
knowledge should similar complaints of racial abuse arise in the foreseeable 
future. Perhaps these proceedings may have served a useful purpose if, by 
clearing the respondent of the allegations against it, they make possible 
efforts at improving human relations with no implication that this is a 
confession of having acted wrongfully in the past. 

For the reasons set out above, the complaint is dismissed. 



DATED at Windsor, Ontario 
December 29, 1980 




Robert W. Kerr 
Board of Inquiry 



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